MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 27 2017, 8:33 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana Marjorie Newell Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- June 27, 2017 Child Relationship of: Court of Appeals Case No. 40A05-1701-JT-62 C.M. (Minor Child) Appeal from the Jennings Circuit And Court H.M. (Mother), The Honorable Jon W. Webster, Appellant-Respondent, Judge Trial Court Cause No. v. 40C01-1608-JT-36
The Indiana Department of Child Services, Appellee-Petitioner.
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 1 of 21 STATEMENT OF THE CASE [1] Appellant-Respondent, H.M. (Mother), appeals the trial court’s Order
terminating Mother’s parental rights to her minor child, C.M. (Child).
[2] We affirm.
ISSUE [3] Mother raises one issue on appeal, which we restate as: Whether the trial court
clearly erred in terminating her parental rights to the Child.
FACTS AND PROCEDURAL HISTORY [4] Mother and M.A. (Father) 1 are the biological parents of the Child, born on
March 11, 2013. Following the Child’s birth, Mother was the sole custodian,
and it appears that Father has had little or no involvement in the Child’s life.
Mother and the Child lived with the Child’s maternal grandmother in North
Vernon, Jennings County, Indiana.
[5] On February 26, 2014, Mother took the eleven-month-old Child to the
emergency room because “he had been screaming and inconsolable” for several
hours. (Appellant’s App. Vol. II, p. 32). In addition, the Child also presented
with a rash on his face, and he tugged at his penis and ear and favored one leg
as if the other was in pain. Pain medication was administered, and when the
1 A DNA test completed on July 1, 2014, established that Father is the Child’s biological parent. His parental rights to the Child were terminated on December 7, 2016. Father does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 2 of 21 cause of the Child’s discomfort could not be isolated, the Child was transferred
to Peyton Manning Children’s Hospital. There, the Child was given a
urinalysis and tested positive for amphetamine, methamphetamine, opiates, and
barbiturates. The pain medication that had been administered at the emergency
room explained the presence of the opiates and barbiturates, but there was no
medical basis for the presence of amphetamine or methamphetamine in the
Child’s system. Thus, the hospital reported to the Indiana Department of Child
Services (DCS) that the Child suffered an amphetamine intoxication. When
DCS questioned Mother as to how the Child might have ingested amphetamine
or methamphetamine, “her story kept trying to change him [sic]. [DCS] never
really got a straight answer of what happened of how [the Child] . . . came into
contact with the drugs.” (Tr. Vol. II, pp. 34-35). Fortunately, the Child
suffered no long-term consequences from ingesting methamphetamine.
Nevertheless, DCS immediately removed the Child from Mother’s custody and
placed him in the care of a maternal aunt. The Child was later moved to the
care of his paternal aunt and her husband, where the Child presently resides.
[6] On March 4, 2014, DCS filed a petition alleging the Child to be a Child in Need
of Services (CHINS). 2 On March 26, 2014, the State filed criminal charges
against Mother regarding the Child’s ingestion of methamphetamine: neglect
of a dependent as a Class C felony and neglect of a dependent as a Class D
2 The CHINS petition was amended on August 20, 2014, to add allegations regarding Father, whose paternity was not determined until July 1, 2014.
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 3 of 21 felony. On April 10, 2015, the trial court conducted a dispositional hearing.
On April 23, 2015, the trial court issued a dispositional order, directing Mother
to comply with a parental participation plan. In relevant part, Mother was
ordered to enroll and participate in all services recommended by DCS and other
service providers; obtain suitable, safe, and stable housing; secure and maintain
a legal and stable source of income; refrain from consuming any illegal
substances; engage in a home-based counseling program; complete a parenting
assessment and all ensuing recommendations; complete a substance abuse
assessment and successfully complete all recommended treatment; submit to
random drug screens; and successfully complete a domestic violence assessment
and all recommendations. On May 28, 2015, more than a year after the Child
was removed from Mother’s care, the trial court adjudicated him a CHINS.
[7] Soon after the Child’s removal, DCS began referring Mother for services—such
as home-based case management, a life coach, and substance abuse treatment
for Mother’s apparent methamphetamine problem. Initially, Mother complied
with her case plan: she attended therapy, met with her family support specialist
for parenting skills and other resources, and she regularly visited with the Child.
However, by the fall of 2014, service providers had lost contact with Mother,
and she was consistently testing positive for amphetamine and
methamphetamine. Thus, Mother and her therapist agreed that an in-patient
treatment program “would be best for her in order to detox and get a fresh
start.” (Tr. Vol. II, p. 40). Mother was enrolled in a thirty-day program at a
facility in Louisville, Kentucky; however, Mother left the facility within her first
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 4 of 21 forty-eight hours unbeknownst to DCS and “against the doctor’s . . . wishes.”
(Tr. Vol. II, p. 41). When DCS finally learned that Mother had discontinued
in-patient treatment, Mother stated that she “couldn’t bear to be away from her
[C]hild for that length of time.” (Tr. Vol. II, p. 41). Yet, Mother did not
arrange to have visitation with the Child until several weeks after she left the
program.
[8] Although Mother continued to test positive for methamphetamine, she
occasionally had negative drug screens as well. However, DCS indicated that
there were times when Mother could not be located to submit to screens. In
fact, at one point during the case, Mother seemingly disappeared—from DCS
as well as her family—for approximately two and one-half months. It was later
discovered that Mother was in a relationship involving “severe domestic
violence” and that her boyfriend had been “somewhat holding her hostage.”
(Tr. Vol. II, p. 42). It was also reported that during Mother’s “back and forth
relationship” with this “[v]ery dangerous man,” he began “stalking” Mother
and “made death threats to her and the Child.” (Tr. Vol. II, p. 48).
Accordingly, DCS offered certain domestic violence services, but Mother “did
not follow through.” (Tr. Vol. II, p. 48).
[9] With respect to other aspects of her case plan, Mother worked various jobs, but
she struggled to maintain stable employment. On multiple other occasions,
Mother reported to DCS that she was employed, but when DCS attempted to
verify, the employers reported that Mother was not employed or had never been
employed with them. Also, while she kept her mother’s address as her
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 5 of 21 permanent mailing address, Mother was gone for long periods of time, so DCS
was never quite sure where she was living at any given time. At some point,
Mother lost her driver’s license and had to rely on her mother and others for
transportation to work and to visit with the Child. On June 4, 2015, the trial
court changed the Child’s permanency plan of reunification to a plan for
terminating Mother’s parental rights to allow for the Child to be adopted.
[10] Although there were periods of inconsistency in visits, Mother generally
maintained contact with the Child. After a conflict arose between Mother and
the Child’s relative placement, DCS instituted supervised visitation. During
those occasions, the visitation supervisor noted that Mother was always very
engaged with and loving toward the Child. She tended to his physical and
emotional needs during the visits, and their bond was evident.
[11] By mid-2015, Mother acknowledged that she needed help with her substance
abuse addiction. With the Child as “her primary motivator to make . . .
progress,” Mother researched in-patient treatment facilities and was accepted
into a program in California. (Tr. Vol. II, p. 16). On September 1, 2015,
Mother left to attend the ninety-day residential treatment program. While
there, Mother attended group and individual therapy and complied with regular
drug screens per the program’s zero-tolerance drug policy. Mother also
obtained a job working for Panera Bread, and she maintained contact with
DCS. Mother successfully completed the program and then remained there for
another month for additional support. When Mother returned to Indiana at the
beginning of 2016, she resumed treatment with her therapist and “was doing
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 6 of 21 well . . . maintaining sobriety.” (Tr. Vol. II, p. 10). She was also “very much”
involved in her case with DCS and was able to transfer her employment to a
Panera Bread chain in Columbus, Indiana. (Tr. Vol. II, p. 59). Due to
Mother’s apparent progress, the trial court, upon DCS’ request, adjusted the
permanency plan to allow for consideration of a guardianship/third party
custody alternative.
[12] Within a few months, Mother’s participation again decreased. DCS once again
struggled to locate her at times and could not obtain regular drug screens.
Mother quit her job. In May, she reported to her therapist “that she was
struggling with substance abuse issues again,” and she provided multiple drug
screens that tested positive for methamphetamine. (Tr. Vol. II, p. 10). Mother
requested placement in an intensive out-patient program, but she did not follow
through. DCS moved to withdraw its motion to modify the permanency plan
to allow for consideration of a guardianship or third party custody alternative.
The trial court agreed and ordered that the permanency plan would be
termination of parental rights and adoption of the Child. In her pending
criminal case, on April 28, 2016, Mother pled guilty to Class D felony neglect
of a dependent in exchange for the dismissal of the Class C felony charge. On
May 31, 2016, the trial court entered a judgment of conviction and imposed a
suspended sentence of eighteen months.
[13] Thereafter, Mother continued to visit with the Child, but she also continued to
abuse methamphetamine and did not otherwise engage with her case plan. On
August 8, 2016, DCS filed a petition to terminate Mother’s parental rights to
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 7 of 21 the Child. Four days later, Mother was alleged to have violated her probation
after she tested positive for amphetamine and methamphetamine and admitted
to using marijuana, and her probation revocation hearing was scheduled to
occur shortly after the hearing on DCS’ petition to terminate her rights.
Despite failing drug screens through the end of August 2016, on October 6,
2016, just two weeks prior to the termination hearing, Mother went to the DCS
office and requested that she be tested; it was negative for controlled substances.
[14] On October 20, 2016, the trial court conducted a hearing on DCS’ petition to
terminate Mother’s parental rights. Mother’s therapist and life coach both
testified regarding Mother’s failure to fully address her substance abuse and lack
of stable housing, employment, and transportation. DCS and the Child’s
guardian ad litem submitted evidence that the Child is thriving in his relative
placement (his paternal aunt and her husband plan to adopt him) and that it
would be in the Child’s best interest to terminate Mother’s parental rights. On
December 7, 2016, the trial court issued an Order terminating Mother’s
parental rights. The trial court concluded, in relevant part, that there is a
reasonable probability that the conditions which necessitated the Child’s
removal and continued placement outside the home will not be remedied by
Mother, that the continuation of the parent-child relationship poses a threat to
the Child’s well-being, and that termination of Mother’s parental rights is in the
Child’s best interests.
[15] Mother now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 8 of 21 DISCUSSION AND DECISION I. Standard of Review
[16] Mother challenges the trial court’s termination of her parental rights. It is long
established that “[a] parent’s interest in the care, custody, and control of his or
her children is ‘perhaps the oldest of the fundamental liberty interests.’” In re
G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009) (quoting Troxel v. Granville, 530 U.S.
57, 65 (2000)). In fact, the Fourteenth Amendment to the United States
Constitution safeguards “the traditional right of parents to establish a home and
raise their children.” Id. Nevertheless, “parental rights are not absolute and
must be subordinated to the child’s interests.” S.L. v. Ind. Dep’t of Child Servs.,
997 N.E.2d 1114, 1122 (Ind. Ct. App. 2013) (internal quotation marks omitted)
(quoting In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010)). Parental rights may be
terminated if the “parents are unable or unwilling to meet their parental
responsibilities.” In re G.Y., 904 N.E.2d at 1259-60. We recognize that the
termination of a parent’s rights is “an extreme measure and should only be
utilized as a last resort when all other reasonable efforts to protect the integrity
of the natural relationship between parent and child have failed.” K.E. v. Ind.
Dep’t of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015) (internal quotation marks
omitted).
[17] When reviewing a trial court’s termination of parental rights, our court neither
reweighs evidence nor assesses the credibility of witnesses. In re G.Y., 904
N.E.2d at 1260. Instead, we will “consider only the evidence and reasonable
inferences that are most favorable to the judgment.” Id. Additionally, the trial
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 9 of 21 court issued specific findings of fact and conclusions thereon. As such, we must
apply the two-tiered standard of review set forth in Indiana Trial Rule 52(A):
“[f]irst, we determine whether the evidence supports the findings, and second
we determine whether the findings support the judgment.” Id. We “shall not
set aside the findings or judgment unless clearly erroneous, and due regard shall
be given to the opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A). We will find clear error only “if the findings
do not support the trial court’s conclusions or the conclusions do not support
the judgment.” In re G.Y., 904 N.E.2d at 1260 (quoting Bester v. Lake Cnty. Office
of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005)).
II. Termination Statute
[18] In order to terminate a parent’s rights, DCS must prove, in relevant part, that a
child has been removed from the home for a specific period of time, and
(B) that one (1) of the following is true: (i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied. (ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child. (iii) The child has, on two (2) separate occasions, been adjudicated a [CHINS]. (C) that termination is in the best interests of the child; and (D) that there is a satisfactory plan for the care and treatment of the child.
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 10 of 21 Ind. Code § 31-35-2-4(b)(2). DCS is required to prove each of these elements by
clear and convincing evidence. In re G.Y., 904 N.E.2d at 1260. Mother
concedes that DCS has established that the Child has been removed from her
care for the requisite period of time and that there is a satisfactory plan in place
for the Child’s care. Thus, Mother argues that DCS failed to prove that there is
a reasonable probability either that the conditions that resulted in the Child’s
removal and ongoing placement out of the home will not be remedied or that
the continuation of the parent-child relationship poses a threat to the Child, 3
and that termination is in the Child’s best interests.
A. Remediation of Conditions
[19] Mother contends that the trial court’s conclusion that there is a reasonable
probability that the conditions which led to the Child’s removal and his
continued placement out of the home will not be remedied is not supported by
sufficient evidence. In determining whether there is a reasonable probability
that conditions will not be remedied, we must identify what conditions led to
the Child’s “placement and retention” outside of the home and subsequently
determine whether there is a reasonable probability that those conditions will
not be remedied. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1231
3 Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that DCS need only prove one of the three elements listed. See In re A.K., 924 N.E.2d 212, 220-21 (Ind. Ct. App. 2010), trans. dismissed. Here, DCS did not allege that the Child has been twice adjudicated a CHINS. Thus, the relevant inquiry is whether DCS established the existence of a reasonable probability either that the conditions resulting in the Child’s removal or continued placement outside the home will not be remedied or that the continuation of the parent-child relationship poses a threat to the Child’s well-being.
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 11 of 21 (Ind. 2013). In making these decisions, “the trial court must judge a parent’s
fitness as of the time of the termination proceeding, taking into consideration
evidence of changed conditions—balancing a parent’s recent improvements
against habitual pattern[s] of conduct to determine whether there is a
substantial probability of future neglect or deprivation.” In re E.M., 4 N.E.3d
636, 643 (Ind. 2014) (citation omitted) (internal quotation marks omitted)
(quoting Bester, 839 N.E.2d at 152; K.T.K., 989 N.E.2d at 1231). “Habitual
conduct may include ‘criminal history, drug and alcohol abuse, history of
neglect, failure to provide support, and lack of adequate housing and
employment.’” K.E., 39 N.E.3d at 647. DCS “is not required to provide
evidence ruling out all possibilities of change; rather, it need only establish that
there is a reasonable probability that the parent’s behavior will not change.”
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013)
(internal quotation marks omitted), trans. denied.
[20] Mother argues that the trial court’s determination cannot stand because there is
insufficient evidence to support six findings that concern whether she is likely to
remedy conditions. Those findings provide:
27. Mother lost all contact with the DCS in early 2016. **** 31. Mother reinitiated her services with [her therapist] in May of 2016, stating that she was struggling with using methamphetamine again. At that time, [the therapist] recommended that she re-engage in [intensive out-patient treatment]. **** 38. Mother has not completed her [intensive out-patient Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 12 of 21 treatment] that was recently recommended by [her therapist]. Mother has also attended only four individual therapy sessions since January of 2016. **** 40. Mother has failed to fully address her substance abuse issues. **** 44. Mother had sporadic and inconsistent contact with the DCS. **** 47. Mother and Father have made no consistent progress towards facilitating reunification with the [C]hild.
(Appellant’s App. Vol. II, pp. 42-43).
[21] According to Mother, contrary to the trial court’s finding, she maintained
contact with DCS and service providers, and while her participation
“decreased” in the spring of 2016, there is no evidence that “it was non-
existent.” (Appellant’s Br. p. 20). With respect to DCS’ testimony that Mother
did not consistently maintain contact, Mother shifts the blame to DCS because
“regular contact [would have been] almost impossible with the turnover of case
managers on her case.” (Appellant’s Br. p. 23). Additionally, Mother contends
that she reinitiated therapy in January of 2016 and that it was she who
requested intensive out-patient treatment rather than it being a recommendation
of her therapist. Mother further insists that she “has continually addressed her
substance abuse issues” by seeking out her own therapist and completing a
program in California. (Appellant’s Br. p. 22). Mother acknowledges that she
suffered a methamphetamine relapse in 2016 but claims that “she was
addressing this relapse by seeking out her own services.” (Appellant’s Br. p.
22). Mother points out that “[h]er most recent drug screen on October 6, 2016,
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 13 of 21 was clean. Mother was not in denial. She was actively addressing her
substance abuse issues.” (Appellant’s Br. pp. 22-23) (citation omitted). Finally,
Mother notes the efforts she undertook toward reunification, including
completing in-patient treatment, finding a job in California that she transferred
to Indiana, that she “was clean and sober for approximately eight (8) months
and made significant progress until her relapse in May [of] 2016,” and her
recent efforts to individually address the relapse. (Appellant’s Br. p. 24).
[22] We first note that, in large part, Mother’s argument appears more akin to a
request that we reweigh the value of the evidence supporting these findings
rather than a contention that there is no basis in the record to support such
findings. Namely, Mother’s arguments regarding her partial compliance at
various periods throughout the case do not negate the trial court’s findings that
she lacked consistency and failed to follow through with her case plan.
Moreover, “even if [Mother] is correct that the [trial] court incorrectly based its
decision to terminate [her] parental rights on deficient or contradictory findings,
provided there exist at least some valid findings to support the trial court’s
conclusions, erroneous findings will not prove fatal.” A.F. v. Marion Cnty. Office
of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.
Here, the trial court issued fifty-two findings, of which Mother challenges only
six as they relate to this statutory element. We find that the unchallenged
findings sufficiently establish that there is a reasonable probability that the
conditions resulting in the Child’s removal and her continued placement
outside the home will not be remedied. Specifically, the trial court found that
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 14 of 21 the Child was removed from Mother’s custody after he tested positive for
amphetamine and methamphetamine. Thereafter, the trial court found that
Mother tested positive for methamphetamine throughout the duration of the
CHINS case, with intermittent periods of sobriety. The trial court found that
Mother failed to complete substance abuse treatment following her last relapse,
she lacked stable employment, and she failed to complete other recommended
services.
[23] The trial court’s findings are fully supported by the record. Between the time
the Child was removed and the hearing on DCS’ termination petition, two
years and eight months elapsed. During that time, and despite the efforts of
both Mother and DCS to combat her addiction, Mother could not maintain
sobriety. After completing an intensive 120-day treatment program in
California, Mother relapsed within a few months of returning to Indiana.
Thereafter, she sought help from her therapist but failed to take advantage of
the follow-up services that were offered. Mother’s therapist explained that
Mother has not adequately addressed her substance abuse issues and that she
prefers to “try and accomplish [her] goals and tasks on her own” rather than
accept assistance from service providers. (Tr. Vol. II, p. 18). Mother waited
until just before the termination hearing to renew her efforts for sobriety.
Despite Mother’s negative drug screen two weeks before the termination
hearing, her history of relapse is a strong predictor of her future habits. See
K.T.K., 989 N.E.2d at 1234 (It is within the discretion of the trial court to
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 15 of 21 “disregard the efforts Mother made only shortly before termination and to
weigh more heavily Mother’s history of conduct prior to those efforts.”).
[24] Furthermore, Mother never obtained stable employment. She worked a few
short-term jobs at the beginning of the case and later found a job at Panera
Bread while in California. She was able to transfer this employment to Indiana,
but she quit her job in April of 2016 due to lack of transportation. Mother
stated that she lost her driver’s license prior to the Child’s removal and testified
that she could not renew her license until she paid $1,300 in damages that
resulted from an accident. While Mother claimed that she had stable housing
with her mother, DCS actually raised Mother’s housing situation as a concern
in light of the fact that the Child was living with Mother and his maternal
grandmother at the time he ingested the methamphetamine. The Child’s
guardian ad litem also found the housing inappropriate, noting that Mother’s
mother “is very protective of her, and I don’t know that she is capable of
stepping up to protect [the Child] if that would take place.” (Tr. Vol. II, p.
126).
[25] Although Mother has attempted to shift some of the blame for her relapse and
her limited access to the Child to DCS, the fault for the Child’s removal and
continued placement out of the home falls squarely on Mother’s shoulders.
While in Mother’s care, the eleven-month-old Child somehow accessed and
ingested methamphetamine, and, as noted by the Child’s guardian ad litem,
Mother has demonstrated a “seeming inability to accept responsibility” for this
incident. (Appellant’s App. Vol. II, p. 36). Fortunately, the Child did not
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 16 of 21 suffer long-term consequences. Yet, this incident was not enough of a wake-up
call for Mother to make permanent changes in her life for the Child’s sake.
Accordingly, there is sufficient evidence to support the trial court’s conclusion
that there is a reasonable probability that the conditions resulting in the Child’s
removal and continued placement out of Mother’s care will not be remedied. 4
B. Best Interests
[26] Mother claims that there is insufficient evidence to support the trial court’s
conclusion that termination of her parental rights is in the Child’s best interests.
The purpose of terminating a parent-child relationship is to protect the child,
not to punish the parent. In re C.C., 788 N.E.2d 847, 855 (Ind. Ct. App. 2003),
trans. denied. Thus, while “[c]lear and convincing evidence need not reveal that
the continued custody of the parent . . . is wholly inadequate for the child’s very
survival[,] . . . it is sufficient to show . . . that the child’s emotional and physical
development are threatened by the respondent parent’s custody.” K.T.K., 989
N.E.2d at 1234-35 (first and fourth alterations in original) (quoting Bester, 839
N.E.2d at 148). When considering whether termination would be in a child’s
best interests, the trial court must “look beyond the factors identified by [DCS]
and . . . look to the totality of the evidence.” A.D.S., 987 N.E.2d at 1158. “The
trial court need not wait until the child is irreversibly harmed such that the
4 Having found that there is sufficient evidence of a reasonable probability that conditions will not be remedied, we need not address the alternative element of Indiana Code section 31-35-2-4(b)(2)(B) regarding whether the continuation of the parent-child relationship poses a threat to the Child’s well-being. See In re A.K., 924 N.E.2d at 220-21 (discussing that Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that only one of the listed factors need be established).
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 17 of 21 child’s physical, mental and social development is permanently impaired before
terminating the parent-child relationship.” K.T.K., 989 N.E.2d at 1235. It is
well established that “[p]ermanency is a central consideration in determining
the [child’s] best interests.” Id. (alterations in original) (quoting In re G.Y., 904
N.E.2d at 1265).
[27] Mother first challenges the trial court’s finding that
[DCS] believes that adoption is in the [C]hild’s best interests. The Guardian Ad Litem . . . also echoed that adoption and termination of parental rights is in the [C]hild’s best interests. The Guardian Ad Litem also filed a written report with the [c]ourt on October 18, 2016, which is made a part hereof by reference, and which expresses the same sentiment as her testimony.
(Appellant’s App. Vol. II, p. 43). According to Mother, this finding is merely a
“recitation of the testimony of [DCS] and the [guardian ad litem].” (Appellant’s
Br. p. 24). Because “[f]indings of fact are a mechanism by which a trial court
completes its function of weighing the evidence and judging witnesses’
credibility,” a trial court “does not find something to be a fact by merely
reciting that a witness testified to X, Y, or Z.’ Rather, the trier of fact must find
that what the witness testified to is the fact.” Pitcavage v. Pitcavage, 11 N.E.3d
547, 553 (Ind. Ct. App. 2014). Thus, “where a trial court’s findings are merely
recitations of a witness’ testimony, they cannot be construed as ‘true factual
determinations.’” Id. Rather, unless “the trial court has adopted the witness’
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 18 of 21 testimony,” we will treat findings that recite testimony “as ‘mere surplusage’
rather than harmful error.” Id.
[28] We agree with the State that the trial court’s finding does not explicitly recite
testimony, and “it appears that the trial court merely intended to draw attention
to and adopt the recommendations of [the guardian ad litem] and [DCS].”
(State’s Br. p. 26). Regardless, our court has previously found that it would
defeat the purpose of Indiana Trial Rule 52 to discard findings that “provide the
parties and any subsequent reviewing court with a comprehensive theory upon
which the case was decided.” Pitcavage, 11 N.E.3d at 558. “Parties ‘have a
legal right to know the evidentiary bases upon which the ultimate finding
rests.’” Id. Here, the trial court’s finding serves to explain its rationale for
reaching its ultimate conclusion; we find no error.
[29] Regarding the sufficiency of the evidence supporting the trial court’s
determination, Mother concedes that both DCS and the Child’s guardian ad
litem advocated that termination of her parental rights was in the Child’s best
interests. Mother also acknowledges that the Child “was adjusted and bonded”
to his relative placement. (Appellant’s Br. p. 28). However, Mother argues
that, “[w]hile [she] is appreciative of the care [the Child] received in relative
placement, this does not mean that [the Child’s] best interests are served by
severing his ties with his biological [M]other which in turn also severs his rights
with his maternal grandmother.” (Appellant’s Br. p. 29). Rather, Mother
contends that she had “a strong bond with [the Child,]” and “[w]ith [her] on the
right track, there would be no harm in providing her with some additional time
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 19 of 21 to ensure she had recovered from her May relapse. She acknowledged her
relapse[], she addressed her relapse and her most recent drug screen was clean.
Visitation was ongoing and productive.” (Appellant’s Br. p. 29). Mother insists
that, even though “[t]here is no guarantee that [she] will be successful[,]” the
trial court’s termination Order should be reversed in lieu of a guardianship to
afford Mother additional time to combat her addiction. (Appellant’s Br. p. 30).
[30] At the time of the termination hearing, the Child had been removed from
Mother’s care for nearly three years, during which time the Child bonded with
his relative placement while Mother continued to abuse methamphetamine and
disregard her case plan. Both DCS and the Child’s guardian ad litem
recommended that termination of Mother’s parental rights was necessary for
the Child’s best interests, and it is well established that “the recommendation by
both the [DCS] case manager and child advocate to terminate parental rights, in
addition to evidence that the conditions resulting in removal will not be
remedied, is sufficient to show by clear and convincing evidence that
termination is in the child’s best interests.” A.D.S., 987 N.E.2d at 1158. Given
the substantial time that had already elapsed, the trial court was under no
obligation to further delay permanency. There is sufficient evidence to support
the trial court’s determination regarding the Child’s best interests.
CONCLUSION [31] Based on the foregoing, we conclude that the trial court did not clearly err in
terminating Mother’s parental rights as there is clear and convincing evidence
to support the trial court’s determinations that there is a reasonable probability Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 20 of 21 that Mother will not remedy the conditions resulting in the Child’s removal and
continued placement out of the home and that termination is in the best
interests of the Child.
[32] Affirmed.
[33] Najam, J. and Bradford, J. concur
Court of Appeals of Indiana | Memorandum Decision 40A05-1701-JT-62 | June 27, 2017 Page 21 of 21